Reynolds v. Reynolds, No. B-10

CourtCourt of Appeal of Florida (US)
Writing for the CourtSTURGIS; CARROLL, DONALD; WIGGINTON; WIGGINTON
Citation117 So.2d 16
PartiesKathryn V. REYNOLDS, Appellant, v. William A. REYNOLDS, Appellee.
Decision Date10 December 1959
Docket NumberNo. B-10

Page 16

117 So.2d 16
Kathryn V. REYNOLDS, Appellant,
v.
William A. REYNOLDS, Appellee.
No. B-10.
District Court of Appeal of Florida, First District.
Dec. 10, 1959.
Rehearing Denied Jan. 6, 1960.

Page 18

Powell & Barrow, Crestview, for appellant.

Ferrin C. Campbell, Crestview, for appellee.

STURGIS, Judge.

The appellant wife, defendant below in an action for divorce on the ground of desertion, seeks reversal of a final decree which denied her counterclaim for separate maintenance, granted divorce to the husband, and awarded alimony to the wife in monthly installments for a limited period of time.

The parties were married in March of 1927 at Bel Air, Maryland. In 1942, while living at Upper Darby, Pennsylvania (where the wife continues to reside), the husband entered military service. In 1943 the wife instituted suit for divorce while her husband was engaged overseas in that occupation, but dropped the action when he returned stateside. They continued to cohabit as husband and wife until sometime in 1952, when the conjugal relations ceased. However, the husband thereafter sporadically occupied the same house as the wife until January 1956, when he was transferred to Fort Rucker, Alabama. They have not since resided together or co-habited.

On January 25, 1957, the husband brought a suit for divorce in Dale County, Alabama, charging voluntary abandonment under Title 34, Section 20, Code of Alabama, and on June 4, 1957, the Alabama court entered a decree as follows:

'This cause coming on to be heard is submitted on oral testimony taken before the Court, and the Court having understood and considered said testimony, it is, hereby,

'Ordered, adjudged and decreed that the relief prayed for in the bill of complaint be, and is hereby denied.'

We here take note that the Supreme Court of Alabama has construed the Alabama ground of 'voluntary abandonment' as importing willful, obstinate and continuous desertion for a period of one year, which parallels the holding of the Supreme Court of Florida in respect to the essential elements for divorce in this state on the ground of desertion under Section 65.04(7), Florida Statutes, F.S.A. See Watkins v. Kidd, 261 Ala. 463, 75 So.2d 87, and Darden v. Darden, 246 Ala. 525, 21 So.2d 549, and compare Mitchell v. Mitchell, 91 Fla. 427, 107 So. 630, and Powell v. Powell, 77 Fla. 181, 81 So. 105.

Following the Alabama decree the husband established his residence in Florida,

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where on March 12, 1958, he filed the suit presently on review. The complaint herein charged the wife with desertion 'for a period in excess of twelve (12) months prior to the filing of this cause of action.' Her answer generally denied that charge and--as an affirmative defense--alleged that the cause was res judicata by virtue of the Alabama decree. She also counterclaimed for separate maintenance, charging plaintiff with extreme cruelty and habitual intemperance.

On August 7, 1958--five months after this suit waf filed--the parties stipulated that the plaintiff should be allowed to amend his complaint so as to charge that the desertion existed for a period of twelve months prior to August 1, 1958, rather than twelve months prior to the filing of the action as initially alleged. The complaint was amended accordingly. We pause to observe that this amendment could serve no useful purpose because power to grant divorce on the ground of desertion is lacking unless it is established that the desertion was willful, obstinate and continuous for a period of one year immediately prior to the commencement of the suit. However, the appellant has not demonstrated that any period of time subsequent to the filing of this suit was taken into account in computing the total period of the alleged desertion, and absent such showing we indulge the presumption that the chancellor correctly applied the law to the facts. We are also cognizant of the settled usage of the courts whereby the parties to a marriage are required to live separately pending divorce proceedings. Their voluntary separation during that period does not constitute willful desertion in contemplation of law. Palmer v. Palmer, 36 Fla. 385, 18 So. 720.

In rebuttal to the husband's proofs in the case on appeal, the wife filed in evidence certified copies of the bill of complaint and of the above quoted decree in the Alabama suit. The critical allegation of the complaint in the Alabama suit was that the wife 'voluntarily and of her own free will and accord' abandoned the bed and board of the appellant for a period of more than twelve months immediately prior to the filing of that action. The mentioned documents constitute the sum of the proofs offered in the Florida suit by the wife in support of the defense of res judicata; and it also represents the total of the proofs upon which any theory of defense by way of judgment by estoppel could be found to exist.

The final decree in the Florida action contains findings to the effect that the trial court had jurisdiction of the subject matter and the parties to the suit and that equities were with the plaintiff husband. It thereupon granted divorce to the husband, but required him to pay alimony to the wife in fixed amounts during the months of September 1958 to February 1959, inclusive, and also to pay a fixed sum for the services of her attorney. The wife appealed

The assignments of error challenge (1) the jurisdiction of the trial court under Section 65.02, Florida Statutes, F.S.A., which specifies the residence requirements of the complaining party, to entertain the action, (2) the sufficiency of the evidence to support the decree of divorce, and (3) the adequacy of the alimony awarded.

We see no need to detail the evidence concerning the husband's residence in this state. Suffice it to say that there is competent evidence in support of the trial court's finding that it had jurisdiction over the subject matter of the cause and the persons of the parties. Unlike Campbell v. Campbell, Fla.1952, 57 So.2d 34, in which our Supreme Court held that the proofs indicated constructive residence only, the husband's proofs in this case clearly demonstrate that he maintained actual residence in Florida for the six-months period immediately prior to commencement of suit, thus satisfying Section 65.02, Florida Statutes, F.S.A. Appellant's

Page 20

first point, therefore, is without merit.

In order for the defense of res judicata to prevail, the final judgment or decree relied upon must reflect within its four corners matters from which it can be determined that the second suit is (1) upon the same cause of action, (2) between the same parties as the first, and (3) that the final judgment in the first suit upon the merits is conclusive in the second suit as to every question that was presented or might have been presented and determined in the first suit. There elements have a special significance when sought to be applied in successive suits for divorce on the ground of desertion. As said in Prall v. Prall, 1909, 58 Fla. 496, 50 So. 867, 871, 26 L.R.A.,N.S., 577:

'While the welfare of society demands exemption from unnecessary and vexatious divorce litigation, the principles of res adjudicata should not be so applied as to prevent one determination of every distinct cause of action under the statutes authorizing divorces for specific and separate species of misconduct. See Lea v. Lea, 99 Mass. 493, 96 Am.Dec. 772.'

It will be noted that the within quoted Alabama decree is silent as to the element or elements of proof the lack of which resulted in denial of the divorce sought in that forum. There is nothing elsewhere in the record on this appeal from which it can be determined whether the Alabama court denied relief because of the plaintiff husband's failure to establish 'voluntary abandonment' (as the Code of Alabama designates the ground for divorce there involved) on the part of the wife, in the sense that she willfully and obstinately quit the bed and board of her husband, as required by the laws of that state as well as of Florida, or that the Alabama divorce was denied because of the husband's failure to establish that such 'voluntary abandonment' was continuous for the statutory period of one year immediately prior to the commencement of the Alabama suit, as also required by the laws of that state. In fact, the factual basis for denial of relief in the Alabama proceeding is not ascertainable from the record on this appeal.

It is apparent in the physical nature of things that where the law requires that the act of desertion must be continuous for a specified period of time immediately prior to the commencement of the action, successive suits for divorce on the ground of desertion necessarily involve separate and distinct factual situations in...

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7 practice notes
  • Aerojet-General Corp. v. Askew, Civ. A. No. 1831
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • November 21, 1973
    ...Gray v. Gray, 91 Fla. 103, 107 So. 261." Donahue, supra, at 169. The Florida appellate courts expressed the rule in Reynolds v. Reynolds, 117 So.2d 16 "In order for the defense of res judicata to prevail the final judgment or decree relied upon must reflect within its four corners matters f......
  • Zweig v. Zweig, No. 89-120
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 1, 1990
    ...on [those grounds] necessarily involve separate and distinct factual situations in respect to that time element. Reynolds v. Reynolds, 117 So.2d 16, 20 (Fla.Dist.Ct.App.1959) (emphasis omitted). The court need only find that the separation had lasted for the requisite statutory period on th......
  • Tillman v. Tillman, No. K--92
    • United States
    • Court of Appeal of Florida (US)
    • April 3, 1969
    ...the exercise of such discretion is subject to review.' On the subject of the denial of alimony, this court held in Reynolds v. Reynolds, 117 So.2d 16 (Fla.App., 1960) that, where the equities of the cause were found to be with the husband (as impliedly held here) the chancellor would have b......
  • Daniel v. Department of Transp., No. Q--204
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1972
    ...of Miami Beach v. Miami Beach Improvement Co., 153 Fla. 107, 14 So.2d 172.' This court thus expressed this rule in Reynolds v. Reynolds, 117 So.2d 16 'In order for the defense of res judicata to prevail, the final judgment or decree relied upon must reflect within its four corners matters f......
  • Request a trial to view additional results
7 cases
  • Aerojet-General Corp. v. Askew, Civ. A. No. 1831
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • November 21, 1973
    ...Gray v. Gray, 91 Fla. 103, 107 So. 261." Donahue, supra, at 169. The Florida appellate courts expressed the rule in Reynolds v. Reynolds, 117 So.2d 16 "In order for the defense of res judicata to prevail the final judgment or decree relied upon must reflect within its four corners matters f......
  • Zweig v. Zweig, No. 89-120
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 1, 1990
    ...on [those grounds] necessarily involve separate and distinct factual situations in respect to that time element. Reynolds v. Reynolds, 117 So.2d 16, 20 (Fla.Dist.Ct.App.1959) (emphasis omitted). The court need only find that the separation had lasted for the requisite statutory period on th......
  • McAlister v. Shaver, No. 92-2960
    • United States
    • Court of Appeal of Florida (US)
    • March 4, 1994
    ...such matters are finally adjudicated because they "might have been presented and determined in the first suit." Reynolds v. Reynolds, 117 So.2d 16, 20 (Fla. 1st DCA In the judgment of dissolution when the court ordered "sole parental responsibility" to the mother without addressing the visi......
  • Daniel v. Department of Transp., No. Q--204
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1972
    ...of Miami Beach v. Miami Beach Improvement Co., 153 Fla. 107, 14 So.2d 172.' This court thus expressed this rule in Reynolds v. Reynolds, 117 So.2d 16 'In order for the defense of res judicata to prevail, the final judgment or decree relied upon must reflect within its four corners matters f......
  • Request a trial to view additional results

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